Category Archives: Health Care

The Impact of Virginia’s Certificate of Public Need Laws on Nursing Home and Home Health Care Availability and Expenditures

by James C. Sherlock

I have come across a major study in the National Institute of Health’s National Library of Medicine that made a point that I have not explored sufficiently to this point.

It discusses the intersection of nursing homes, home health care, CON laws like Virginia’s Certificate of Public Need (COPN) law, and Medicaid expenditures.

I have shown over time in a series of columns how bad many of Virginia’s nursing homes are.

Antitrust authorities at the Federal Trade Commission (FTC) and at the US Department of Justice (DOJ) have long taken the position that CON laws are anticompetitive.

This study, conducted prior to COVID, indicates that COPN administration will ensure that nursing facilities not only have little competition from other facilities, which it was designed to do, but also will limit home health care expansion, which the COPN law does not mention.

That is very good for the Virginia nursing home industry.

It is bad for every other Virginian, every one of whom may need at least post-operative recovery and rehabilitation if not long term care.

Some will need it in a dedicated facility, others can be better served at home.

The study indicated that COPN will tend to make home health care less available and potentially raise total Medicaid spending. It also showed that market forces unconstrained by CON laws like COPN will tend to reverse those trends.

So this article is dedicated to our politicians and their constituents.

You. Continue reading

National Academy of Sciences Offers Superb Recommendations for Fixing Virginia’s Nursing Home Crisis

by James C. Sherlock

Sometimes, we need to listen.

I just finished the 806-page 2022 report The National Imperative to Improve Nursing Home Quality: Honoring Our Commitment to Residents, Families, and Staff by the National Academy of Sciences (NAS). It is downloadable at the link.

That study and report were utterly professional and thorough, as scientific as you expect, remarkably staffed and bipartisan in recommendations.

I have compiled from Appendix D of that report those remedies recommended for execution by states and nursing homes. They deserve to be the centerpiece of Virginia law and regulation going forward.

All of them. Continue reading

The Virginia State Budget and the Rising Costs of Registered Nurses

by James C. Sherlock

I was asked yesterday by a reader about the relationship between nursing homes, rising registered nurse salaries and the new Virginia budget agreement.

Good questions. Virginia’s workforce includes nearly 70,000 registered nurses.

The state pays its workers, but it also pays its Medicaid share for private sector nurses. Pay for private sector workers is based upon market conditions. The market wage for registered nurses nationwide increased dramatically during COVID.

Perhaps the only good thing to come out of that mess was that registered nurses, of whom Virginia has 11% fewer than demand calculated by the federal Health Resources and Services Administration, got very large pay and bonus raises, and the new wage points appear to have stuck.

If the laws of economics work here, that will over time increase the number of nurses if we can educate and train them in the required numbers.

The latest figures from the Bureau of Labor Statistics for all states show that the median wage for an RN in Virginia was $79,700 a year. In Northern Virginia portion of the D.C. metro area, the median was $92,800.  The underlying data are a couple of years old.

Wages and bonuses can vary a lot among Virginia hospitals, nursing homes, home health agencies, nursing school staff and government employees, and are higher or lower depending on specialty. The private sector offers $10,000 to  $20,000 signing bonuses paid out after the first year.

Employers of course must pay payroll taxes and other expenses related to employees, and thus their costs will generally exceed $100,000 per RN.

Virginia RNs are still underpaid compared to national figures. The mean annual wage for America’s 3 million registered nurses in May was $89,010 compared to Virginia’s $79,900.

The federal Centers for Medicare/Medicaid Services, aware of some of the questionable business models of bad actors in the nursing home industry, published last week a proposed rule to both increase the minimum number of RNs in nursing facilities and to require all nursing facilities to reveal every year how much of the Medicare and Medicaid payouts go to salaries and related expenses.

So, Medicare and Medicaid costs will go up yet again. Continue reading

Virginia Has an Opportunity to Take the Lead in Nursing Home Technology Insertion to Improve Care with Existing Staff

by James C. Sherlock

A pending new federal rule defining strong nursing home staffing minimums has finally accomplished something that I thought unlikely in my lifetime.

It has in a single stroke aligned the interests of patients and their loved ones, nurses, nursing homes, state and federal governments, and taxpayers in finding ways to make existing nursing home staffs more efficient and effective.

That alignment brings the miracle of the loaves and fishes to mind.

It takes some explaining.

  1. The value of the new regulations to patients and loved ones and nurses is clear. Better quality of care for patients and better working conditions — less stress and better job satisfaction — for the nurses.
  2. The nursing homes and their lobbyists oppose the new rule, but it appears that it will happen. They face a significant shortage of registered nurses in Virginia and competition for nurses from hospitals with deeper pockets. So, they very much want to somehow reduce the new minimum federal requirements.
  3. The state and federal governments, and thus the taxpayers, will inevitably see demands for Medicare and Medicaid payment increases to pay for the new staff. So, it would benefit taxpayers and the national debt to reduce those ratios as long as the desired levels of care could be maintained.

One answer to address all of those interests is extensive automation of processes in which nurses are involved. Just some of the requirements:

  • Integrate electronic health records (EHR) and nurse support apps for real-time data entry on mobile devices;
  • Remotely pre-screen, prioritize and automate alert and alarm workflows;
  • Alert to medication administration requirements and help prevent medication errors;
  • Enable nurses to notify the appropriate responders to crises with one click on a mobile device.

Continue reading

An Overdue New Federal Rule to Improve Nursing Home Staffing

By James C. Sherlock

What would happen if the federal government were to propose for the first time specific nursing home staffing minimums?

We are about to find out.

A new rule.  A new federal proposed rule introduced yesterday has already survived fierce opposition from the industry, which tried to kill it in the womb.  They are not done opposing, but the administration seems to have its course set.

And the new rule is clearly within the letter and spirit of the Social Security Act that requires safe, quality care.

The new proposed federal rule consists of three core staffing proposals:

  1. minimum nurse staffing standards of 0.55 hours per resident day (HPRD) for Registered Nurses (RNs) and 2.45 HPRD for Nurse Aides (NAs);
  2. a requirement to have an RN onsite 24 hours a day, seven days a week (currently 8 hours a day); and
  3. enhanced facility assessment requirements.

While the final rule minimums will be phased in over a three-year period, five for rural facilities, they would, if in force today, render non-compliant 245 of the 281 Virginia nursing homes that are rated for staffing by CMS.

There are also groundbreaking provisions for transparency on the percentage of Medicare and Medicaid payments spent on direct care staff, not just for nursing homes but also for community and home care.

The new proposed rule is potentially a great improvement for prospective patients coming out of the hospital to recuperate and rehabilitate or entering long term care.

Which includes a lot of very vulnerable Virginians.

Continue reading

Who Knew?

Henrico Doctors Hospital courtesy HCA

by James C. Sherlock

I just came across a fact that surprised me considering how much I have studied Virginia hospitals.

Henrico Doctors’ Hospital with 767 beds and CJW Medical Center with 758 beds, both in Richmond, rank numbers five and six in size in the entire 180-hospital empire of HCA, the largest private hospital system in America.

Together they represent HCA’s largest market presence by far.

Go Richmond.

Virginia’s Certificate of Public Need Program – A New Sheriff in Town

by James C. Sherlock

Everywhere counterproductive to competition, innovation and cost, Virginia’s Certificate of Public Need (COPN) program also has proven antithetical to quality and safety in nursing homes.

A thorough 2022 report by the National Academies of Sciences, Engineering and Medicine on improving nursing home quality had this to say about state Certificate of Need (CON) programs:

Certificate-of-need regulations and construction moratoria do not appear to have had their intended effect of holding down Medicaid nursing home spending; rather, these laws can discourage innovation and decrease access.

Certificate-of-need regulations may contribute to the perpetuation of larger nursing homes.

Despite the prominent role of nursing home oversight and regulation, the evidence base for its effectiveness in ensuring a minimum standard of quality is relatively modest.

The role of Virginia’s COPN program is as counterproductive to nursing home quality as is imaginable. Remember, COPN decisions happen before the state and federal regulators of the operations of nursing homes even get into the game.

Virginia’s COPN program is a statutory incumbent protection regime across all of its regulated targets. But it has gotten especially bad results with nursing homes, which by nearly every measure are among the worst in America.

In Virginia, the only realistic way to increase the size of a nursing facility is by COPN approval of the transfer of beds from one facility to another, often from one region of the state to another. Continue reading

New Virginia Nursing Home Law Appears to Violate Federal Statute

by James C. Sherlock

In addition to the General Assembly embarrassing themselves in the way they passed a law on nursing homes in this year’s session, they did it in an unseemly rush.

There was no pre-filing, a near-immediate and disgraceful floor “debate” led by the nursing industry’s lobbyist, and a rushed vote in the House Health, Welfare and Institutions Committee.  

A committee member in the House hearing asked for time to consider the bill. Her request was denied by the Chairman, who was the House patron of the bill. That was followed by a cursory review in the Senate Education and Health Committee before near-unanimous passage by both bodies.

Now it appears that the new state law they passed may violate the governing federal statute. Which, of course, state laws are not permitted to do under the supremacy clause. Continue reading

The Ongoing Tragedy of Virginia’s Nursing Homes

by James C. Sherlock

Virginia’s Health Commissioners have a job that is broad and deep in its responsibilities and authorities.By statute, appointees must be physicians.

Each is the chief executive of the Virginia Department of Health (VDH): a central office in Richmond and 35 local health districts.

By Virginia statutes and regulations, they are also the final decision authorities on such issues as the licensing of hospitals and nursing homes and all Certificate of Public Need decisions.

Nursing homes. To the point of this particular discussion, Health Commissioners have since at least 1989 possessed statutory (Code of Virginia § 32.1-135) and regulatory 12VAC5-371-90. Administrative sanctions authority to sanction Virginia nursing homes.

B. The commissioner may impose such administrative sanctions or take such actions as are appropriate for violation of any of the standards or statutes or for abuse or neglect of persons in care. Such sanctions include:

  1. Restricting or prohibiting new admissions to any nursing facility;
  2. Petitioning the court to impose a civil penalty or to appoint a receiver, or both; or
  3. Revoking or suspending the license of a nursing facility.

The results of a FOIA request inform me that not one of them has ever used that authority.

Not once in 34 years. Continue reading

The Virginia Board of Health and Nursing Homes – A Strange Appointment

by James C. Sherlock

I am starting to lose my sense of humor about the whole Virginia nursing home thing.

The Virginia Board of Health (VBOH) writes state regulations for every health facility and health services provider in Virginia, including nursing homes.

There is a statutory seat on the VBOH for a nursing home representative. (Of course there is.)

The incumbent, appointed by Governor Northam, is Melissa Green, RN. I am sure she is a good nurse and a good person.

But Ms. Green is also one of the three founders and the Chief Clinical Officer (CCO) of Trio Healthcare.

Trio is rated by the Centers for Medicare and Medicaid Services (CMS) as one of the worst nursing home chains in the entire country and the worst in Virginia.

The senses of humor of all of us are once again threatened by The Virginia Way. Continue reading

How Did VCU Miss the Red Flags?

by Jon Baliles

The unravelling saga of a failed development proposal downtown a block from City Hall that was supposed to rise out of the ashes of the failed Navy Hill project is still smoldering. The failed deal has come with a price tag of about $80 million so far (and growing) for VCU Health. They were supposed to be the main tenant of the project and, by all accounts, approved and signed a deal in July 2021 in which VCU accepted heavily one-sided terms that have become so expensive it could still ripple throughout the city, the university, and the state.

Eric Kolenich has peeled back the latest layer of the onion in an eye-popping article in the Times-Dispatch this week, with emails that revealed grave concerns with the deal that would leave VCU Health holding the bag, and also emails that showed more concern to close the deal than what was in it. The emails show both bad communication and miscommunication among those at top levels of VCU’s administration at both the Monroe Park campus and the medical campus. They were sent in a flurry in the weeks leading up to VCU inking and approving the deal, and ignored warnings that were raised in favor of a closer analysis or alternative parachutes that would offer a way out.

After the Navy Hill project failed in early 2020, Capital City Partners, the developers who led that attempt, returned to the city with a proposal for a development for the city’s dilapidated old Public Safety Building at 500 N. 10th Street (aka the Clay Street Project because it is at 10th & Clay Streets). The proposal was for a 17-20 story building that would be leased by VCU Health for office use. They would pay $650 million in rent over 25 years that would produce close to $60 million in tax revenue for the city.

VCU would have to pay rent starting in 2024, whether or not the building was completed, as well as pay for repairs and maintenance. If the project faced cost overruns, VCU would also be on the hook for those.  And strangely, since it was office space, it would not generate any revenue for VCU Health like other facilities they had recently built (e.g. the Children’s Hospital). Continue reading

Nurse Staffing in Virginia Nursing Homes in July Ranked 49th in the Nation

by James C. Sherlock

The Centers for Medicare & Medicaid Services (CMS) has released its national nursing home quality data for July.

It provides summaries of nursing home performance for each state, the District of Columbia and three U.S. territories.

I sorted it for Reported Total Nurse Staffing Per Resident Per Day. I did that because Virginia’s lead nursing home lobbyist in January insisted, on video, to a hearing of an always-compliant General Assembly that the Commonwealth’s nursing homes be judged by that metric.

In July, our nursing homes ranked 49th by their own preferred total nurse staffing measure. Nurse shortages are nationwide, so that fact cannot explain it.

Those same nursing homes in those same data ranked 45th in total nurse turnover at 57.5% annually. Some of the worst individual Virginia nursing homes experience nearly 100% nursing turnover annually.

That creates a vicious cycle.

  • Virginia has too many nursing homes that are understaffed, some by design;
  • Nurses quite naturally don’t like to work in them and, with many job options, will not remain in such places;
  • When staffing falls, nurses know it from CMS data or reputation and won’t take a job where they will be overworked and unable to provide optimum care to patients;
  • The understaffed nursing homes get worse.

Continue reading

New CMS Hospital Quality Rankings – Virginia Facilities Ranked Exceptionally High

by James C. Sherlock

UVa Hospital

The Centers for Medicare & Medicaid Services (CMS) on Wednesday released its latest annual hospital quality rankings .

Only 10.4% of the rated hospitals in the country were awarded the top ranking of five stars.  Of Virginia’s 74 rated hospitals, 13 received that top ranking. Almost 18%.

Nationally, 28% received one of the top two rankings.  In Virginia, 58%.

As a whole, Virginians are exceptionally well served.

By Hospital.  I have taken Virginias hospitals from the new national list and sorted them descending by star-ranking, 5 stars though 1 star.  The results are here.  

The footnote dictionary is here.  For the column header dictionary, see here.

By Hospital System.  Categorized by system and with computed system hospital averages, the system ranking is here, sorted, like the individual hospitals, descending from best to worst.

By Region.  See here.  Northern Virginia, with all of its hospitals 5- and 4-Star rated, may be the only region of its size in the country that can make that claim.

Regional wealth or poverty, and the attractiveness of the location to staff and management still matter.  Especially management.

The new rankings show significant changes.  We’ll take a look.

Continue reading

Nursing Homes – What Could Go Wrong?

Mt. Vernon Healthcare Center Alexandria

by James C. Sherlock

I have written a lot recently about staffing shortages in Virginia nursing homes and the Commonwealth’s national ranking near the bottom of the states for staffing measures.

It is appropriate to ask why that matters.

Federal analyses of Centers for Medicare & Medicaid Services (CMS) data offer the answer.

In proposing to adopt the Total Nursing Hours per Resident Day Staffing (Total Nurse Staffing) measure for the FY 2026 program year and subsequent years, the rule-makers offered this:

Staffing is a crucial component of quality care for nursing home residents. Numerous studies have explored the relationship between nursing home staffing levels and quality of care. The findings and methods of these studies have varied, but most have found a strong, positive relationship between staffing and quality outcomes.

Specifically, studies have shown an association between nurse staffing levels and hospitalizations, pressure ulcers, weight loss, functional status, and survey deficiencies, among other quality and clinical outcomes.

The strongest relationships have been identified for registered nurse (RN) staffing; several studies have found that higher RN staffing is associated with better care quality. We recognize that the relationship between nurse staffing and quality of care is multi-faceted, with elements such as staff turnover playing a critical role.

Remember, the surveys are conducted both for CMS certification and Virginia licensing by the Office of Licensure and Certification (OLC) of the Virginia Department of Health.

I have always found that office to be staffed by exemplary public servants, even while there have never been enough of them.

But we’ll get specific about Virginia nursing homes and survey deficiencies as the answer to the question:

“What could go wrong?”

Continue reading

Staffing Has Collapsed in Many Virginia Nursing Homes, Creating a Health Crisis for Our Most Vulnerable Citizens

by James C. Sherlock

I am seldom surprised by Virginia’s nursing home staffing problems, but new government data show no progress on staffing since October of last year.

Data from the Centers for Medicare & Medicaid Services show that the number of significantly understaffed facilities has not budged in seven months.

The numbers don’t lie.

And it undeniably represents a health crisis for our most vulnerable citizens.

The questions are: what are the facility operators and the Virginia Department of Health going to do about it? Continue reading